U.S. Courts Oppose Reform Proposals For Secret Surveillance Court

The U.S. federal court system objects to key proposals by a presidential review panel to reform the secret court that supervises the classified electronic eavesdropping activities of the U.S. National Security Agency, a former chief judge of that court said on Tuesday.

Judge John Bates, the former head of the Foreign Intelligence Surveillance (FISA) Court, sent the objections in a letter to Sen. Dianne Feinstein, chairwoman of the Senate Intelligence Committee. He said he submitted it on behalf of the federal judicial system as a whole, through an entity called the Judicial Conference of the United States, of which he is secretary.

Bates, who is director of the Administrative Office of the U.S. courts, said that Supreme Court Chief Justice John Roberts had asked him to represent the federal judiciary on matters concerning the Foreign Intelligence Surveillance Act, under which the secret court operates.

President Barack Obama is expected to announce his plan for reforming the NSA on Friday, and the objections could seriously undermine one option he was thought to be considering.

Bates strongly warned against a proposal by the review panel in December that Congress create a “Public Interest Advocate” to represent privacy and civil liberty concerns before the court, which usually operates behind closed doors.

In the letter, Bates said that allowing a public advocate to participate in FISA court proceedings was “unnecessary and could prove counterproductive in the vast majority of FISA matters.”

The review panel was appointed by Obama to examine U.S. electronic spying activities in the wake of revelations by former NSA contractor Edward Snowden last year. It presented its report to the White House in December.

It recommended several reforms to the FISA court system, under which NSA obtained broad authorization to conduct eavesdropping operations, including collecting vast amounts of telephone “metadata” on foreigners and Americans.

The panel said that on issues such as the bulk telephony metadata program, presentation of competing arguments by a public advocate would provide the judge with more information that would likely “result in a better decision.”

Judge Bates argued against the panel’s suggestion. “Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation,” he said.

He added that if a public advocate were allowed broad participation in the FISA court it “could actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.”

People familiar with the Administration’s deliberations say Obama is likely to agree to several largely cosmetic reforms, such as greatly restricting eavesdropping on friendly foreign leaders, but that he is under pressure from intelligence officials not to make big changes in surveillance programs.

One official said there had been some discussion of at least tinkering with the telephone metadata collection procedures, perhaps by leaving the data under control of phone companies or a non-profit entity rather than NSA itself.

NSA officials have warned this could slow down intelligence operations in a crisis.

Caitlin Hayden, a spokeswoman for the National Security Council, said in an email the White House was continuing to study the panel’s report and was considering the options.

She suggested that the President was still considering a privacy advocate. “Specifically, steps can be taken to make sure civil liberties concerns have a greater voice in appropriate cases by ensuring that the government’s position is challenged by an adversary,” she said.

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